MANHATTAN (CN) — A lawyer for Donald Trump and two of his adult children pleaded to a skeptical New York appellate court on Wednesday to revive their bid to quash subpoenas issued by the New York attorney general’s office in connection with the state’s civil investigation into the business practices of the Trump real estate empire.
In January, attorneys representing former President Trump and two of his children, Don Jr. and Ivanka, filed a motion to quash subpoenas issued by the New York attorney general, arguing that the Attorney General’s Office is attempting to improperly use its civil investigation of Trump business activities to aid the joint criminal investigation it is conducting with the Manhattan District Attorney’s Office in a unconstitutional run-around over the restraints of the criminal investigation process with grand jury procedures.
A month later, New York Supreme Court Judge Arthur Engoron shot down the Trumps’ motion to quash the subpoenas and ordered them to comply with the requests for depositions and to supply the subpoenaed documents.
In appeals brief, the Trump’s attorney Alan Futerfas argued that the attorney general’s subpoenas violate New York state criminal procedure law and are “not the result intended by the NY Constitution or the legislature.”
A four-judge panel of the First Department of the Appellate Division appeared hesitant on Wednesday to reverse the lower court’s dismissal of Trump’s motion to quash the attorney general’s subpoenas.
“What makes you think that a prosecutor worth his or her salt would immunize you by asking you to come and testify before a grand jury,” asked Judge Rolando Acosta during a 40-minute hearing before New York’s First Judicial Department appellate court.
Acosta is referring to what’s known as grand jury transactional immunity, offered in New York to encourage witnesses to testify before the grand jury, protecting them from prosecution for any crime that is the subject of their grand jury testimony.
“If you look at the Court of Appeals precedent, the existence of a criminal investigation does not recuse civil discovery on related facts on which a party may exercise the privilege of self-incrimination,” the judge said. “We have plenty of precedent from this court that allows it.”
Trump’s attorney Alan Futerfas asked the appeals court to order fact-finding hearing that would look into coordination between the offices of New York attorney general and the Manhattan district attorney.
“That sounds like a collateral exploration that’s unprecedented,” Judge Acosta told Futerfas on Wednesday.
While the Trumps are free to invoke their Fifth Amendment right to remain silent at any time in a deposition, his attorneys have raised concerns about the potential for an “adverse inference” that could be drawn at trial from invoking the right against self-incrimination.
Trump’s son, Eric Trump did so hundreds of times, as did the Trump Organization’s finance chief Allen Weisselberg, when they were questioned by investigators in 2020.
Judith Vale, assistant deputy solicitor general for the New York State Attorney General, said there is nothing unique about such a scenario where criminal and civil investigations are going simultaneously with the same agency involved in both.
“Under state and federal law, the privilege against self-incrimination is a shield against being compelled to incriminate yourself,” Judith Vale, assistant deputy solicitor general for the New York State Attorney General said. “It is not a sword that can be used to quash a civil investigative subpoena.”
Vale told the appeals panel that Trump’s appeal had not sufficiently supported his selective prosecution claims against Letitia James, while the attorney general’s office had demonstrated a history of similar claims and enforcement actions against other large New York businesses or their principals.
“For example, there was an action brought against the former CEO and CFO of AIG. There’s been actions brought against Credit Suisse, Exxon,” she said. “When there are public allegations, like the one Michael gave in his sworn testimony to Congress, that a large prominent New York company has been engaged in potentially misleading statements and omissions, it is the Attorney General’s statutory authority investigate — and indeed her job — to investigate and to find out the truth.”
Vale reiterated to the appeals panel on Wednesday that the subpoenas were issued in connection with a civil probe that predates the Manhattan DA’s criminal investigation by two years.
Earlier in the day on Wednesday, Judge Engoron signed off an order in the lower court lifting Donald Trump’s $10,000 per day contempt order if he and his company complied with certain discovery obligations in response to attorney general’s subpoenas by May 20 and paid the $110,000 contempt fee that accumulated over the past two weeks.
The conditions include providing a description of the Trump Organizations' document retention and destruction policy, and to review pages of documents tied to Trump that can be used as evidence
Judge Engoron warned that $10,000 a day contempt fine will be reinstated if Trump fails to comply by the set date.
The judge also agreed to place Trump's fine in an escrow account until his contempt appeal is complete.
Attorney General James praised the ruling on Wednesday afternoon.
“For years, Mr. Trump and the Trump Organization have tried to thwart our lawful investigation, but today’s decision makes clear that no one can evade accountability,” she wrote in a statement.
During a mid-February hearing before Judge Arthur Engoron in Manhattan Supreme Court, attorneys for Trump and his children attacked the state’s civil subpoena as improper given that the state is also engaged in a concurrent criminal probe of the Trump Organization.
Engoron declined to quash the subpoena, however, ruling that “personal animus” did not catalyze the investigation into whether the Trump Organization made misrepresentations on financial documents such as tax filings and annual financial statements. Rather, the investigation began after Trump’s former longtime personal attorney Michael Cohen testified to Congress that the organization had been cooking its books.
The judge’s order said Trump had to sit for a deposition as part of the proceedings.
Days after Engoron issued his order, two of the top prosecutors leading the criminal probe in the Manhattan District Attorney’s office resigned.
Originally, Trump had until March 3 to hand over documents to the Attorney General’s Office as part of its civil probe, but his attorneys asked for an extension of March 31.
Trump’s attorneys appealed the portion of the judge’s order ruling the former president sit for questioning, but did not appeal the document production.
In April, the Attorney General’s office brought a motion for contempt against Trump over his failure to turn over all responsive documents, including a pair cell phones.e
Last summer, spurred by evidence uncovered in James’ civil investigation, the Manhattan district attorney’s office charged Alan Weisselberg and the Trump Organization with tax fraud, alleging he collected more than $1.7 million in off-the-books compensation.
Weisselberg and the company have pleaded not guilty.
Despite the recent departures of top investigators leading the criminal probe, Manhattan District Attorney Alvin Bragg affirmed last month that the Trump Organization case remains ongoing.
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